Case 1:13-cv Document 1 Filed 03/04/13 USDC Colorado Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.:

WILLIAM LAWRENCE, and

COLORADO CROSS-DISABILITY COALITION, a Colorado non-profit organization, Plaintiffs,

v.

TRIUMPH CSR ACQUISITION, LLC, d/b/a AUGUSTE ESCOFFIER SCHOOL OF CULINARY ARTS, and

TRIUMPH HIGHER EDUCATION GROUP, LLC, Defendants.

COMPLAINT

Plaintiffs, William Lawrence and the Colorado Cross-Disability Coalition (“CCDC”), by and through undersigned counsel, hereby bring this Complaint against Triumph CSR Acquisition, LLC, d/b/a Auguste Escoffier School of Culinary Arts, and Triumph Higher Education Group, LLC, for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794, et seq.

Introduction

1. On July 26, 1990, more than twenty years ago, the ADA was passed, establishing the most important civil rights law for people with disabilities in the nation’s history.

2. Section 504 was enacted in 1973.

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discriminated against.

4. One of the purposes of Section 504 and the ADA is ensuring that deaf and

hard-of-hearing individuals receive qualified sign language interpreter services or other auxiliary aids and services necessary to ensure effective communication.

5. Recently, Defendants opened and began operating the Auguste Escoffier School of Culinary Arts in Boulder, Colorado (“Escoffier”).

6. According to promotional materials for the school, Escoffier provides unique culinary arts instruction, founded upon the father of modern French cuisine, “the king of chefs and the chef of kings,” Auguste Escoffier, and his world renowned recipes and modernized techniques. 7. In addition to providing such distinctive culinary arts instruction, Escoffier offers a “Farm To Table Experience” internship, during which students partner with local farmers,

ranchers and artisans to gain hands-on experience and in-depth knowledge about utilizing fresh, local ingredients, and making sustainable, ethical ingredient choices.

8. Defendants, however, refuse to provide sign language interpreters to deaf

individuals, thus denying such individuals effective communication and access to its educational programs in violation of the ADA and Section 504.

9. Plaintiffs seek a court order compelling Defendants to comply with the ADA and Section 504, monetary damages and the recovery of their reasonable attorneys’ fees and costs.

Jurisdiction and Venue

10. This Court has jurisdiction over the federal claims in this action pursuant to 28 U.S.C. §§ 1331 and 1343.

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11. Venue is proper within this District pursuant to 28 U.S.C. § 1391. Parties

12. Plaintiff William Lawrence is and was at all times material hereto a resident of Colorado.

13. Mr. Lawrence is deaf.

14. Mr. Lawrence is a member of CCDC.

15. Plaintiff CCDC is a Colorado non-profit corporation whose members are persons with disabilities and their non-disabled allies.

16. Defendant Triumph CSR Acquisition, LLC, is a Colorado Limited Liability Company, domiciled in Illinois, doing business in Colorado as Auguste Escoffier School of Culinary Arts, which is located at 691 South Broadway St., Suite B, Boulder, Colorado 80305.

17. Defendant Triumph Higher Education Group, LLC, is a Delaware Limited Liability Company, and owner and operator of Triumph CSR Acquisition, LLC.

Facts

18. Plaintiff William Lawrence is deaf and communicates primarily through American Sign Language (“ASL”).

19. ASL is a separate and distinct language from English, which uses its own unique phrases, descriptions, syntax and grammatical rules.

20. Mr. Lawrence does not speak, read or write effectively in English. 21. Mr. Lawrence does not effectively read lips.

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assistance from the Colorado Department of Human Services, Division of Vocational Rehabilitation (“DVR”).

23. In 2011, Mr. Lawrence approached his DVR counselor about his desire to become a professional chef in order to determine whether DVR could assist him with payment for his culinary school education.

24. Through the end of 2011, Mr. Lawrence and his DVR counselor worked together to formulate a plan for Mr. Lawrence to, with DVR’s tuition assistance, attend culinary school.

25. In January of 2012, Mr. Lawrence contacted Escoffier, via video phone, to schedule a campus tour, and spoke with an individual by the name of Nicole.

26. A videophone is a device that allows a deaf individual and a hearing individual to communicate during a phone call. The deaf person uses a monitor and camera to connect with a sign language interpreter and the two of them communicate using sign language. The sign language interpreter then speaks by telephone to the hearing individual and interprets the communication between the deaf and hearing callers.

27. On information and belief, Nicole’s surname is Peitz (“Ms. Peitz”), and she was and is the Director of Student Affairs for Escoffier.

28. Ms. Peitz was made aware during the videophone call that Mr. Lawrence is deaf. 29. While Ms. Peitz scheduled a campus tour for Mr. Lawrence, he asked her about Defendants’ providing a sign language interpreter for the tour.

30. Ms. Peitz responded that during the tour, he and she could communicate by written notes and that if he required a Sign Language Interpreter (“SLI”) he would need to bring his own.

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31. Mr. Lawrence was unable to secure his own SLI for his campus tour.

32. During Mr. Lawrence’s campus tour, he and Ms. Peitz attempted to communicate via written notes.

33. During Mr. Lawrence’s campus tour, he was unable to effectively communicate his questions, was unable to understand much of the communication with Ms. Peitz, and was unable to effectively gather information about Escoffier.

34. Mr. Lawrence and Ms. Peitz’s communication during his campus tour was not effective.

35. After additional meetings with his DVR counselor, Mr. Lawrence contacted Ms. Peitz again to schedule a time to shadow Escoffier students in class (“Shadowing”).

36. Mr. Lawrence and Ms. Peitz scheduled the Shadowing for August 1, 2012, but Ms. Peitz informed Mr. Lawrence that Defendants would not provide an interpreter for the Shadowing.

37. Because Defendants refused to provide an interpreter for Mr. Lawrence’s Shadowing, he contacted his DVR counselor to secure an interpreter for the Shadowing.

38. On August 1, 2012, Mr. Lawrence and the interpreter provided by DVR attended the Shadowing at Escoffier.

39. Because Mr. Lawrence had the services of a sign language interpreter available, communication was effective during the Shadowing.

40. Shortly after Mr. Lawrence’s Shadowing experience, he submitted an application for admission to Escoffier and paid the $100 application fee.

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Defendants’ Director of Student Finance, regarding funding his education and DVR’s involvement.

42. Prior to Mr. Lawrence’s meeting with Ms. Meadors, he asked her whether Defendants would provide a sign language interpreter for the meeting.

43. Ms. Meadors informed Mr. Lawrence that Defendants would not provide a sign language interpreter for the meeting.

44. Because Defendants would not provide a sign language interpreter for Mr. Lawrence’s meeting with Ms. Meadors, he contacted his DVR counselor to secure an interpreter for the meeting.

45. Because Mr. Lawrence had the services of a sign language interpreter available, communication was effective during his meeting with Ms. Meadors.

46. Mr. Lawrence received two letters from Defendants, dated August 9, 2012: one from Ken Hause, Defendants’ Campus Director, congratulating Mr. Lawrence on his acceptance to Escoffier; the other from Ms. Meadors, regarding funding and financial aid.

47. Between mid-August and late-September of 2012, Mr. Lawrence communicated multiple times with Ms. Peitz via videophone regarding DVR paying for his classes and general questions regarding the school and classes.

48. During Mr. Lawrence’s communications with Ms. Peitz between mid-August and late-September of 2012, she informed him that Escoffier would provide a sign language interpreter for his classes.

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confirming that DVR would pay the tuition for Mr. Lawrence to attend Escoffier, with an attached revised financial aid award letter reflecting DVR’s payment of Mr. Lawrence’s tuition.

50. Escoffier’s new student orientation was scheduled for Saturday, September 22, 2012, with classes scheduled to begin the following Monday, September 24, 2012.

51. On Tuesday, September 18, 2012, Mr. Lawrence met with Ken Hause regarding his need for sign language interpreters for his classes.

52. The September 18, 2012 meeting between Mr. Lawrence and Mr. Hause was scheduled to occur earlier in the month, but was cancelled by Mr. Hause shortly before the meeting was to occur, and rescheduled.

53. Defendants had refused to provide a sign language interpreter for Mr. Lawrence to meet with Mr. Hause earlier in September of 2012.

54. Because Defendants refused to provide a sign language interpreter for Mr.

Lawrence to meet with Mr. Hause earlier in September of 2012, DVR secured and paid for a sign language interpreter for the meeting.

55. Because Mr. Hause cancelled the meeting with Mr. Lawrence scheduled earlier in September of 2012, without sufficient time for DVR to cancel the interpreter without payment of a cancellation fee, Defendants agreed to provide an interpreter for Mr. Lawrence’s September 18, 2012, meeting with Mr. Hause.

56. When Mr. Lawrence met with Mr. Hause on September 18, 2012, the sign language interpreter Defendants provided was not able to interpret effectively between Mr. Lawrence and Mr. Hause.

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57. Mr. Lawrence had great difficulty understanding the interpreter’s interpreting of what Mr. Hause said; however, he did understand some of the communication.

58. During their meeting on September 18, 2012, Mr. Hause informed Mr. Lawrence that Defendants would not provide sign language interpreters for his classes.

59. On September 21, 2012, Mr. Lawrence contacted Ms. Peitz by videophone to attempt to find out more about why Defendants would not provide interpreters for his classes.

60. During their conversation, Mr. Lawrence informed Ms. Peitz that he would be unable to understand his instructors without an SLI interpreting the instructor’s instructions.

61. During their conversation, Mr. Lawrence informed Ms. Peitz that DVR would not pay his tuition if he would not be provided with sign language interpreters for his classes.

62. During their conversation, Ms. Peitz informed Mr. Lawrence that she would attempt to persuade Mr. Hause to ensure that Defendants would provide Mr. Lawrence with sign language interpreters for his classes, but that she could not guarantee such.

63. On September 27, 2012, after classes had already begun, Mr. Hause e-mailed Mr. Lawrence, reaffirming that Defendants would not provide sign language interpreters for classes.

64. Defendants refused to provide Mr. Lawrence with sign language interpreters for his classes.

65. Because Defendants refused to provide sign language interpreters to Mr. Lawrence, necessary to ensure effective communication for his classes, Mr. Lawrence was unable to attend Escoffier.

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for people with all types of disabilities, and to combat discrimination against individuals with disabilities, through advocacy, education, research and training.

67. As a part of its purpose, CCDC seeks to ensure that individuals who are deaf and hard-of-hearing have access to -- and do not encounter discrimination in -- participating in educational classes and vocational training.

68. CCDC engages in extensive outreach as well as advocacy and educational efforts to promote access for and combat discrimination against people with disabilities, which have been and continue to be adversely affected by Defendants’ violations of the ADA and Section 504.

69. The interests Plaintiffs seek to protect -- ensuring that Defendants offer and provide appropriate auxiliary aids and services necessary for effective communication for deaf individuals who require qualified sign language interpreters for effective communication -- is germane to CCDC’s purpose.

70. The participation of individual CCDC members in the lawsuit is not required either to resolve the claims at issue or to formulate relief.

71. Escoffier’s actions have caused and continue to cause distinct, palpable and perceptible injury to CCDC. Those injuries include, but are not limited to, those described herein.

First Claim for Relief (Violations of Title III of the ADA)

72. Plaintiffs reallege and incorporate by reference the remainder of the allegations set forth in this Complaint as fully set forth herein.

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services, facilities, privileges, advantages, or accommodations of any place of public

accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a), 28 C.F.R § 36.201(a).

74. Mr. Lawrence is an individual with a disability. See 42 U.S.C. § 12131(2). 75. CCDC has members who are also individuals with disabilities. Id.

76. Escoffier is a “public accommodation” which includes “elementary, secondary, undergraduate, or postgraduate private school, or other place of education[.]” 42 U.S.C. § 12181(7)(J), 28 C.F.R. § 36.104.

77. Under Title III:

It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through

contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.

42 U.S.C. § 12182(b)(1)(A)(i), 28 C.F.R. § 36.202(a).

78. Defendants have denied Mr. Lawrence the opportunity to participate in or benefit from its goods, services, facilities, privileges, advantages and accommodations.

79. In the absence of the injunction sought herein, Defendants will continue to deny Mr. Lawrence the opportunity to participate in or benefit from their goods, services, facilities, privileges, advantages and accommodations.

80. Plaintiffs have been injured, damaged and aggrieved by, and, in the absence of the injunction requested herein, will continue to be injured, damaged and aggrieved by Defendants’ actions.

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81. Specifically, Title III of the ADA defines discrimination to include: “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations; [and] a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden[.] 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). See also 28 C.F.R. § 36.302, § 36.303.

82. The United States Department of Justice (“DOJ”) is statutorily charged with promulgating regulations implementing the ADA, and those regulations are entitled to substantial deference. See 42 U.S.C. § 12186(b), Colo. Cross-Disability Coalition v. Hermanson Fam. Ltd. P’ship I, 264 F.3d 999, 1004 n.6 (10th Cir. 2001).

83. As the DOJ regulations explain, “[a] public accommodation shall furnish

appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1).

84. Specific to the educational setting, the regulations provide that:

Any private entity that offers . . . courses related to . . . certification, or credentialing for secondary or postsecondary education, professional, or trade purposes shall offer such examinations or courses in a place and manner accessible to persons with disabilities [and] shall provide appropriate auxiliary aids and services for persons with impaired sensory, manual, or speaking skills, unless the private entity can demonstrate that offering a particular auxiliary aid or service would fundamentally alter the course or would result in an undue burden.

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85. The phrase “auxiliary aids and services” includes, inter alia, “qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments[.]” 42 U.S.C. § 12103(1)(A).

86. “In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” 28 C.F.R. § 36.303(c)(1)(ii). See also, 28 C.F.R. pt. 36, app. A (“When a public accommodation ignores the communication needs of the individual requiring an auxiliary aid or service, it does so at its peril, for if the communication provided is not effective, the public accommodation will have violated title III of the ADA.”), 28 C.F.R. pt. 36, app. C (“Implicit in this duty to provide auxiliary aids and services is the underlying obligation of a public accommodation to communicate effectively with its customers, clients, patients, or participants who have disabilities affecting hearing, vision, or speech.”).

87. The regulations further provide that “[t]he type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.” 28 C.F.R. § 36.303(c)(1)(ii).

88. Auxiliary aids and services, specifically qualified interpreters, are required to ensure that communication is effective, accurate and impartial, both expressively and receptively, and using any necessary specialized vocabulary. See 28 C.F.R. § 36.104.

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90. Defendants have discriminated against Mr. Lawrence by refusing to furnish appropriate auxiliary aids and services necessary to ensure effective communication, thus denying him effective communication with Defendants’ staff with respect to his meetings with Defendants’ staff prior to his acceptance into Escoffier.

91. Defendants have discriminated against Mr. Lawrence by refusing to furnish appropriate auxiliary aids and services necessary to ensure effective communication, thus prohibiting him from having effective communication with respect to the culinary classes Mr. Lawrence was scheduled to take.

92. In the absence of the injunction sought herein, Defendants will continue to

discriminate against Mr. Lawrence by refusing to provide appropriate auxiliary aids and services necessary to ensure effective communication, thus denying Mr. Lawrence effective

communication.

93. Plaintiffs have been injured, damaged and aggrieved by, and, in the absence of the injunction requested herein, will continue to be injured, damaged and aggrieved by Defendants’ actions.

Second Claim for Relief (Violations of Section 504)

94. Plaintiffs reallege and incorporate by reference the remainder of the allegations set forth in this Complaint as fully set forth herein.

95. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), provides in pertinent part:

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No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

See also, 34 C.F.R. § 104.1 et seq. (United States Department of Education regulations implementing Section 504).

96. Post-secondary education programs or activities that receive Federal financial assistance “shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills.” 34 C.F.R. § 104.44(d).

97. Section 504 and the ADA are interpreted in pari materia.

98. On information and belief, Escoffier receives Federal financial assistance.

99. In addition, Escoffier is “a college, university, or other postsecondary institution . . . or other school system[,]” and Defendants are each respectively a “corporation, partnership or other private organization . . . which is principally engaged in the business of providing

education[.]” 29 U.S.C. § 794(b)(2)(A)-(B), § (3)(A).

100. Plaintiff Lawrence is a qualified individual with a disability who had been accepted into Escoffier’s culinary education program, and was then excluded from that program because of Defendants’ refusal to provide auxiliary aids and services.

101. CCDC has members, including Mr. Lawrence, who are individuals who are deaf, and are qualified to participate in the services, programs, activities and benefits of Defendants’ education services and activities within the meaning of Section 504.

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102. In the absence of the injunction sought herein, Defendants will continue to deny appropriate auxiliary aids and services necessary to ensure effective communication, including sign language interpreters, to deaf individuals, including Mr. Lawrence.

103. Defendants have acted intentionally and with reckless disregard for Plaintiffs’ civil rights.

104. Plaintiffs have been injured, damaged and aggrieved by, and, in the absence of the injunction requested herein, will continue to be injured, damaged and aggrieved by Defendants’ discrimination.

Prayer for Relief WHEREFORE, Plaintiffs respectfully pray: 1. That this Court assume jurisdiction;

2. That this Court issue an Order declaring Defendants to be in violation of Title III of the ADA and Section 504;

3. That this Court issue an injunction ordering Defendants to provide qualified sign language interpreters and any other appropriate auxiliary aids or services in order to ensure effective communication with Mr. Lawrence;

4. That this Court awards Plaintiffs damages;

5. That this Court award Plaintiffs their reasonable attorneys’ fees and costs; and 6. That this Court award such additional or alternative relief as may be just, proper and equitable.

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Respectfully Submitted,

/s/ Andrew C. Montoya Kevin W. Williams

Andrew C. Montoya

Colorado Cross-Disability Coalition 655 Broadway, Suite 775 Denver, Colorado 80203 Phone: (303) 839-1775 Facsimile: (720) 210-9819 E-mail: kwilliams@ccdconline.org E-mail: amontoya@ccdconline.org Attorneys for Plaintiffs

Dated: March 1, 2013

Address of Plaintiff William Lawrence: 8979 Field Street, Unit 26

Broomfield, Colorado 80021

Address of Plaintiff Colorado Cross-Disability Coalition: 655 Broadway, Suite 775

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